Justice Scalia Isn’t Racist, He Just Read the Pre-trial Briefs

For almost a week now progressive politicians and media have been attacking Supreme Court Justice Anton Scalia for peddling racism. The charge is based on comments Scalia made last week during arguments in the affirmative action case of Fisher v. the University of Texas. But based on the pre-trial briefs and the tradition of Justices playing “devil’s advocate,” Justice Scalia said nothing wrong and the progressives are over-reacting by a mile.

The case has been brewing for seven years. Plaintiffs Abigail Noel Fisher and Rachel Multer Michalewicz applied to the University of Texas (UT) at Austin in 2008 and were denied admission. The two women, both white, sued the university alleging it had discriminated against them on the basis of their race in violation of the Equal Protection Clause of the Fourteenth Amendment.

Justice Scalia addressed one of the University of Texas’ lawyers in his usual blunt style:

“There are those who contend that it does not benefit African­ Americans to ­­ to get them into the University of Texas where they do not do well, as opposed to having them go to a less-­advanced school, a slower-­track school where they do well …”

He also referred to an Amicus Brief (Friend of the Court) submitted by former journalist Stuart Taylor and UCLA professor Richard Sander to be reviewed when considering the merits of the case.Taylor and Sander conceived of what they call, the “mismatch theory,” which suggests that affirmative action can actually work against the students it’s supposed to benefit. They argue that the practice of affirmative action may place some students in colleges where their skills fall below the average level of ability. Those students may end up struggling academically, which harms them in the long-term.

Scalia referred to their research when he remarked:

“most of the black scientists in this country don’t come from schools like the University of Texas….They come from lesser schools where they do not feel that they’re that they’re being pushed ahead­­ in classes that are too ­­ too fast for them.”

Obviously Scalia did his homework.

But the Amicus Brief, and “mismatch theory” or its relevance to the case, was irrelevant to Harry Reid. Instead, Reid capitalized on a political opportunity to criticize a Justice who seeks to uphold the U.S. Constitution.

He not only read Scalia’s comments on the Senate floor– he also ripped into Justice Scalia for “endorsing racist ideas.” CNN aired some of Reid’s rhetoric:

“These ideas that he pronounced yesterday are racist in application, if not intent.

“I don’t know about his intent, but it is deeply disturbing to hear a Supreme Court Justice endorse racist ideas from the bench on the nation’s highest court. His endorsement of racist theories has frightening ramifications, not the least of which is to undermine the academic achievements of Americans, African-Americans especially.”

But he didn’t stop at Scalia. Reid used the opportunity to bash Republican presidential nominee Donald Trump to further blame racism on all Republicans.

“As we speak, Donald Trump is proposing to ban Muslim immigration. Other leading candidates are proposing a religious test, tossing around slurs on a daily basis.

“And now a Republican-appointed justice endorsing racist ideas from the Supreme Court bench. The only difference between the ideas endorsed by Trump and Scalia is that Scalia has a robe and a lifetime appointment. Ideas like this don’t belong on the Internet, let alone the mouths of national figures.

”The idea that African-American students are somehow inherently intellectually inferior to other students is despicable.

“It’s a throwback of time to a time that America left behind half a century ago. The idea we should be pushing well-qualified African-Americans out of the top universities into lesser schools is unacceptable.”

Harry Reid’s comments were echoed in progressive circles all weekend. Even Donald Trump slammed the Justice. Trump told CNN’s Jake Tapper in an interview that aired Sunday on State of the Union,

“I thought it was very tough to the African-American community, actually.

“I don’t like what he said. No, I don’t like what he said. I heard him, I was like, ‘Let me read it again’ because I actually saw it in print, and I’m going — I read a lot of stuff — and I’m going, ‘Whoa!’”

Was this Trump attempting to endear himself to the African-American community or was it Trump making comments before understanding the full picture?

Scalia never mentioned anything remotely close to suggest that African-American students were inferior. He did state that – sometimes – affirmative action can send students to schools for which they are unqualified, a practice which hurts those students. His observation was based on an Amicus Brief that neither Harry Reid, nor his progressive minions, nor Donald Trump even read before bothering to criticize with such hostility.

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